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"The words of my book nothing, the drift of it everything."
Walt Whitman

Litigations are notoriously hostile proceedings. All too often, advocates come to arbitrations wanting to apply the same strategies and procedural maneuvers they use in court. In fact, such an approach may backfire and violate ethical standards. Best practices in arbitration advocacy differ greatly from those in litigation.

On October 3, 2017, Kyle-Beth Hilfer, chair of the Westchester County Bar Association’s Business & Commercial Law Committee, will moderate a continuing legal education course entitled: “Advocacy and Civility in Arbitration—Do they go Hand in Hand?” Leveraging her years of experience as an arbitrator, Hilfer will facilitate a discussion about pervasive myths concerning arbitrations. She will then walk the panel through the timeline of an arbitration, examining advocates’ ethical obligations and suggested strategic planning. In addition, Hilfer will compare arbitration providers and compare management of different types of cases, from pro se to large, complex cases. Finally, Hilfer will lead the panel to provide tips on preparing arbitrators to deliver the most effective award.

To read more about strategic approaches to arbitration and attorneys’ ethical obligations in arbitration, click here.

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Kyle-Beth Hilfer recently spoke on a webinar offered by The Knowledge Group entitled “Social Media Contests and Sweepstakes: Understanding Legal Considerations and Regulations.” Social media prize promotions  boost engagement and brand awareness and attract customers. While sweepstakes and contests have been around for decades, the social media context creates some unique complications. Here are three important questions you need to ask before running social media prize promotions.

  • The FTC’s Acting Commissioner Maureen Ohlhausen has asserted her interest in focusing on “demonstrable harm” for data security issues. Why should I be more concerned now about the legalities of sweepstakes or contests in social media?

Sweepstakes and contests consistently rank in the FTC’s annual top ten list of consumer complaints. So this is an area of inquiry for the FTC that is unlikely to diminish in importance. In addition, data security is a significant issue for social media prize promotion sponsors. They often run these campaigns to collect data on their customers. At the same time, to the extent that the FTC only chooses to focus on the worst offenders, progressive state attorneys general are picking up the regulatory baton. The resulting regulatory activity is likely to be more fragmented, requiring an even more detailed state-by-state analysis of social media sweepstakes and contests.

  • What are my biggest areas of concern if my company wants to run a social media sweepstakes or contest?

Determining the proper structure for a sweepstakes or contest in social media is often the trickiest part. Refer a friend, text to enter, and public judging, for example, all require legal vetting. You can implement these strategies successfully if you plan ahead to avoid legal mishaps. While many form rules are available online or through vendors, these documents often overlook important strategic considerations. Are you inviting cheating with your structure? You will want to consider which states or territories to void. Are you asking for more data than you need or can secure? Experienced counsel can help you to cover all subtleties of your promotion’s legalities and implementation. For global promotions, you need global legal clearance.

Many social media promotions involve user-generated content (UGC). This content poses its own set of legal risks, including intellectual property claims, rights of privacy/publicity claims, false advertising risks, and brand reputational issues. While many rules contain indemnity clauses regarding UGC, such clauses may have little practical protection for the brand. Accordingly, your rules need to give appropriate consideration to content submission guidelines for entrants and acquisition of content rights.

Finally, your marketing team’s advertising and promotion of the game must align with your rules and legal requirements. Often, the marketing plan is the Achilles heel of social media prize promotions. Vet your social media posts ahead of time to ensure you meet the disclosure requirements of the FTC’s Endorsement & Testimonial Guidelines, DotCom Disclosures Guidelines, and Native Advertising Guidelines and Enforcement Policy and any applicable state laws.

  • All of this legal vetting sounds like it takes time to manage. Social media campaigns move fast. And my competitors are doing all kinds of interesting campaigns without following these rules. How can my marketing team keep up with the marketplace and accommodate legal review on a tight time schedule?

First of all, you have no way of knowing whether or how your competitors have analyzed the risks of their promotions. Even if they have contemplated the legalities of their programs, their risk tolerance may be greater than yours. In short, you should draw inspiration from the creativity of your competitors, but you may not want to shoulder the same potential legal liability.

Second, if you are outsourcing your marketing, it is tempting to outsource legal responsibility to your vendor. Take note you are still responsible for the actions of your agency. Look carefully at the warranties/indemnities sections of your vendor contracts, and consider doing your own legal clearance regardless. It is your liability and your public relations disaster if the agency goes rogue or just acts too quickly without accepting the legal responsibility.

Finally, as to timing, with proper training and monitoring of your marketing team, compliance with all applicable laws is manageable. There is undoubtedly a learning curve. So start early if this is your company’s first social media prize promotion. Consider some in-house tutorials. Make sure you have the appropriate policies set up for third-party influencers and that you are enforcing those policies. Time and time again, the presence of adequately enforced social media policies has spared companies from FTC enforcement action. Consider ahead of time which social media platforms work best for your brand from both a marketing and legal perspective. In short, marketing teams that partner with legal counsel early and often find that they can move the most rapidly and with the most security.

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Restaurant Law University: Branding and Marketing Concerns

May 23, 2017

Hospitality businesses are becoming increasingly creative in their marketing, not only to win new business, but also to maintain relationships with loyal customers. On June 6, 2017, Kyle-Beth Hilfer will moderate and speak at Restaurant Law University. In her presentation on branding, she will discuss the legal implications of various branding and marketing techniques. Below are two examples. […]

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Influencer Marketing Ills: Legal Problems on Instagram

April 24, 2017

The Federal Trade Commission (FTC) has been watching social media influencer marketing campaigns particularly carefully. In the modern world of social media marketing, the line between acceptable business practices and illegal deceptive speech can be blurry. The government agency wants to ensure that consumers are not manipulated with endorsements and testimonials that brands have “bought.” […]

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Intellectual Property Strategies Every CEO Needs for the Sharing Economy

March 6, 2017

The “sharing economy” seeks to empower consumers by freeing them from the burdens of ownership. The savvy CEO may wonder: How can the collaborative crowd distinguish counterfeit product from my trusted trademarked or copyrighted products? How can my company remain profitable when consumers eschew new branded goods and services? In fact, the CEO should take comfort in knowing that […]

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Consumer Protection: Preparing for Evolution under President Trump

January 23, 2017

With the inauguration of President Trump, I have four broad predictions about consumer protection under the new administration. 1. Federal agencies will narrow their scrutiny of businesses. Chairwoman Edith Ramirez resigned from the Federal Trade Commission (FTC), effective February 10, 2017. Ramirez was an Obama appointee, and under her leadership, the FTC stepped up its […]

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DMCA Update: Act Now to Maintain Legal Safe Harbor

December 1, 2016

The US Copyright Office’s new regulations on the Digital Millennium Copyright Act (DMCA) go into effect today December 1, 2016. In order to maintain a website’s valuable DMCA safe harbor protections, service providers must conform to the new requirements. Background The DMCA amended the Copyright Act to address, among other things, situations in which Internet users […]

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Legal Reasons to Make Sure Consumers Understand Your Advertising Disclosures

October 5, 2016

We’ve all seen the fine print in advertising, but do we, as consumers, read or understand what these disclosures say? This inquiry was the focus of the FTC’s recent workshop “Putting Disclosures to the Test.” The consensus was that consumers neither read nor understand many disclosures. At the same time, the workshop suggested some best […]

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Hot Legal Issues for Marketers Summer 2016

August 5, 2016

It’s August, and brands are heating up their summer campaigns and preparing for fall, Marketers tend to jump on prominent news stories and seek relevance by reacting to them. In so doing, they may run afoul of trademark laws or regulatory compliance issues. The season also brings retail challenges, as bricks and mortar stores try […]

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Native Advertising Legal Analysis and Practice Tips

July 21, 2016

Advertising that feels and looks like editorial platform content has existed for decades. In the age of social media, however, “native advertising,” as it is now often called, has become more confusing. Brands have become more sophisticated at disguising their advertising messages within the editorial content, making it more difficult to differentiate commercial speech. The […]

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